# Opinion

> District Court, E.D. Tennessee · December 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11213761

## Case

- **Full name:** Marcus Sewell, Jr. and Amber Sewell v. Wilderness Development Corporation a/k/a Wilderness at the Smokies a/k/a/ Soaky Mountain
- **Court:** District Court, E.D. Tennessee
- **Decided:** December 3, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11213761

## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

MARCUS SEWELL, JR., and )
AMBER SEWELL, )
)
Plaintiffs, )
v. )
) No. 3:24-CV-406-TAV-JEM
WILDERNESS DEVELOPMENT )
CORPORATION a/k/a WILDERNESS )
AT THE SMOKIES a/k/a/ SOAKY )
MOUNTAIN, )
)
Defendant. )
)

MEMORANDUM AND ORDER

This case is before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court, and
Standing Order 13-02.
Now before the Court is Defendant’s Motion to Compel Rule 35 Neuropsychological
Examination of Marcus Sewell, Jr. (“Motion to Compel”) [Doc. 85]. Plaintiff Marcus Sewell, Jr.
(“Plaintiff”) responded in opposition [Doc. 89],1 and Defendant filed a reply [Doc. 91]. The motion
is ripe for adjudication. See E.D. Tenn. L.R. 7.1(a).
For the reasons set forth below, the Court GRANTS Defendant’s motion [Doc. 85].
I. BACKGROUND
On February 24, 2024, Plaintiffs filed a lawsuit seeking compensation for personal injuries
arising from an incident that occurred at Defendant’s waterpark in 2022 [Doc. 1 p. 2]. They allege
that Defendant’s employee “directed Plaintiff . . . to go down [a water] slide while it was occupied

1 While there are two Plaintiffs, Marcus Sewell, Jr., and Amber Sewell, only Plaintiff Marcus
Sewell, Jr., responded to the Motion to Compel [See Doc. 89].
by another patron,” and that “[he] collided with said other patron, and, as a direct and proximate
consequence, suffered serious injury including, without limitation, traumatic brain injury and
injury to his cervical and thoracic spine” [Id. at 2–3].
On August 25, 2023, Matthews Gwynn, M.D., an orthopedic/neurosurgical physician,

conducted an independent medical examination (“IME”) of Plaintiff for Defendant [Doc. 85 p. 2;
Doc. 86 p. 2]. According to Defendant, the IME was “limited to structural and physiological
aspects of then-alleged head, back, and neck injuries” [Doc. 86 p. 2; see also Doc. 85 p. 2].
Defendant states that over a year later, on November 14, 2024, Plaintiff disclosed Daniel
D. Eisenman, Ph.D. (“Dr. Eisenman”), a neuropsychological expert [Doc. 86 p. 2; see also
Doc. 85 p. 3]. Defendant claims that it made a timely request for medical records and expert reports
but that it “did not receive the underlying neuropsychological records until September 4, 2025”
[Doc. 86 p. 2; see also Doc. 85 p. 3]. Defendant asserts that the “records reflect a single clinical
neuropsychological evaluation by [Dr.] Eisenman . . . , conducted on October 4, 2022, and a speech
language-cognitive assessment by Tiffany McCusker, CCC-SLP, on November 20, 2023”

[Doc. 86 p. 2; see also Doc. 85 p. 3].
On November 6, 2025, Defendant filed the Motion to Compel, requesting that Plaintiff
undergo an IME [Doc. 85]. Defendant claims that the “allegations, and the damages sought, place
[Plaintiff’s] neuropsychological functioning squarely at issue” [Id. at 2]. Specifically, Defendant
contends that the Complaint “allege[s] [Plaintiff] sustained a traumatic brain injury (‘TBI’) and
post-concussion syndrome and continues to suffer cognitive and psychological complaints
including: memory loss, attention, process and reasoning deficiencies, and emotional/behavioral
changes” [Id.].
As set forth in the Declaration of Dr. Brandon Baughman,
[Defendant explains that] the existing clinical assessments are
methodologically insufficient because . . . the testing:

a. Lacks adequate performance and symptom validity testing
necessary to verify authenticity of reported deficits;
b. Omits sustained-attention measures and appropriate reading
rate/comprehension testing despite opinions referencing
those cognitive domains;
c. Reflects internal inconsistencies and atypicalities;
d. Contains non-standardized screening and score
interpretation errors.
[Id. at 3]. According to Defendant, “[T]he sole clinical examination is severely dated and does not
assess [Plaintiff’s] current physical and neuropsychological condition” [Id.]. Defendant argues that
it therefore needs “a complete neuropsychological examination . . . to fully evaluate [Plaintiff’s]
asserted injuries, required treatments, and overall prognosis” [Id. at 4]. Defendant submits it is
necessary “to differentiate if [Plaintiff’s] reported symptoms are due to a physical brain injury, pre-
existing conditions, or psychological factors . . . [and that b]oth the neurophysiological and
neuropsychological examinations are needed to provide objective, comprehensive evaluation of
the nature and extent of [Plaintiff’s] injuries and the short and/or long-term limitations” [Id.].
Defendant argues there is good cause for the neuropsychological examination because the
“requested examination tests the cognitive, mental, and behavioral impact from the injury with
specific focus on functional and psychological consequences of known or suspected brain injury”
[Id.].
Plaintiff responds and concedes that his “neuropsychological condition is in controversy,”
but he denies that good cause exists for an IME conducted by Defendant’s retained expert
[Doc. 89 p. 1]. According to Plaintiff, “Defendant has not shown the challenged testing was an
improper basis for Plaintiff’s expert to form an opinion, [as] [its] expert simply insists that the
testing conducted was not the full battery of tests he would have conducted to work the case up for
litigation” [Id. at 1–2]. Plaintiff argues the requirement to conduct a Rule 35 examination is “more
than a simple showing that the condition is in controversy and the other party’s expert would like
to do more testing” [Id. at 2].

In response to Defendant’s argument that the previous IME was limited to structural and
physiological aspects, Plaintiff contends that “Dr. Gwynn conducted neurocognitive testing,
reviewed the records of Plaintiff’s treatment for post-concussive syndrome, and states an opinion
regarding the same” [Id.]. Further, Plaintiff submits that “there are less invasive means to obtain
the information sought” [Id.]. Specifically, Plaintiff proposes that “Defendant’s new expert can
depose Plaintiff’s treating physician . . . and act as a rebuttal expert,” noting that the deposition is
being scheduled [Id. at 3]. As for the concerns that the 2022 report is stale, Plaintiff suggests that
“[he] can follow up with his physician and obtain an updated report” [Id.]. “If specific additional
testing is deemed necessary,” Plaintiff claims that “it can be obtained in another, more targeted
manner . . . [such as] an expert of Plaintiff’s choice or a more limited encounter with an expert

selected by Defendant” [Id.]. Finally, if the Court grants the motion, Plaintiff asks “that the testing
be limited to a single day with defined breaks” because “the expert’s statement that he will allow
‘routine’ breaks is insufficient” [Id.].
Defendant replies that “Plaintiffs’ response does not rebut the showing that [Plaintiff’s]
mental and psychological condition is squarely ‘in controversy’ and that ‘good cause’ exists for a
limited, targeted, neuropsychological examination” [Doc. 91 p. 1]. Rather, Defendant states that
Plaintiff conflates the previous IME with the now requested examination, that he mischaracterizes
the proposed examination as a duplicative fishing expedition, and disregards that he has placed his
alleged anxiety, depression, and PTSD at issue [Id.].
Specifically, Defendant contends that “[a] neurologic post-concussion IME, which lasted
for a total of 75 minutes . . . is different from, and does not substitute for, a comprehensive
neuropsychological examination conducted by a board-certified clinical neuropsychologist”
[Id. at 2]. Defendant submits that “Plaintiffs’ own pleadings and discovery responses place

[Plaintiff’s] mental and neuropsychological condition squarely in controversy,” noting that
Plaintiff “further alleges significant emotional and psychiatric injury, including anxiety,
depression, and PTSD, and contends that these conditions cause continuing mental anguish and
preclude him from returning to full-time work” [Id. at 3]. Defendant maintains that “when a
plaintiff affirmatively asserts mental or physical injury and intends to support those allegations
with medical and expert proof, the ‘in controversy’ requirement is satisfied and good cause exists
for an examination targeted at those very conditions” [Id.]. Defendant further argues that it does
“not seek unlimited or open-ended testing,” but rather requests “a single, one-day (approximately
eight-hour) neuropsychological examination focused on the precise domains [Plaintiff] claims are
impaired” [Id.]. Defendant claims that it “is entitled to its own independent Rule 35 examination,

particularly where, as here, Plaintiff intends to rely on neuropsychological or mental-health
evidence in support of alleged permanently debilitating anxiety, depression, and PTSD” [Id.].
“Finally, to the extent Plaintiff[] raise[s] objections to the logistics or conditions of the
examination,” Defendant asserts that “those concerns do not defeat the showing of good cause and
can be addressed by reasonable conditions in the Court’s order” [Id. at 5]. Defendant submits that
“[a] one-day evaluation with breaks, conducted at or near Plaintiff’s hometown by a licensed
neuropsychologist, is not unduly burdensome in light of the stakes of the litigation” [Id.].
II. ANALYSIS
Rule 35 of the Federal Rules of Civil Procedure provides that, upon motion for good cause
and notice to all parties and the person to be examined, “the court where the action is pending may
order a party whose mental or physical condition . . . is in controversy to submit to a physical or

mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1)–(2). In
order to justify the need for an IME, the defendant must show (1) that the plaintiff has put his
physical or mental condition “in controversy,” and (2) that there is “good cause” for the
examination. Schlagenhauf v. Holder, 379 U.S. 104, 118–19 (1964) (“A plaintiff in a negligence
action who asserts mental or physical injury . . . places that mental or physical injury clearly in
controversy and provides the defendant with good cause for an examination to determine the
existence and extent of such asserted injury.” (citation omitted)).
“Plaintiff concedes his neuropsychological condition in in controversy[,]” but he “denies
that good cause exists for [a second] IME” [Doc. 89 p. 1 (citation omitted)]. “While Rule 35
requires courts to ‘specify the time, place, manner, conditions, and scope of the examination, as

well as the person or persons who will perform it’ the Rule does not expressly limit the number of
such good-cause examinations that may be ordered.” S.R. v. Kenton Cnty. Sheriff’s Office, No. 15-
143, 2018 WL 11420453, at *2 (E.D. Ky. Feb. 12, 2018) (citing Roberts v. AC Marine, Inc., No.
12-2317, 2013 WL 1814923, at *4 (E.D. La. Apr. 29, 2013)); see also Booth v. Mohave Transp.
Ins. Co., No. 13-6746, 2014 WL 3881203, at *4 (E.D. La. Aug. 6, 2014) (“Although Rule 35 does
not limit a party to one medical examination, good cause under Rule 35[] may entitle a party to
obtain more than one examination if the circumstances of an action warrant the same.” (citations
omitted)); Vopelak v. Williams, 42 F.R.D. 387, 389 (N.D. Ohio 1967) (granting a second Rule 35
examination).
But Rule 35 examinations, “like all other forms of discovery, are subject to the general
provision of Rule 26(c) that the court may make any order which justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or expense.” S.R.,
2018 WL 11420453, at *3 (quoting Roberts, 2013 WL 1814923, at *4). Therefore, “[w]here the

moving party has already made an examination in the past, . . . the court will require a stronger
showing of necessity before it will order repeated examinations.” Id. (quoting Roberts,
2013 WL 1814923, at *4).
Courts have relied on four factors when weighing whether there is sufficient good cause
for a party to submit to a successive examination:
(1) separate injuries calling for examination by distinct medical
specialties;
(2) where a physician requires assistance of other consultants
before he can render a diagnosis;
(3) where the first examination was not adequate or complete;
and
(4) where a substantial time lag occurred between the initial
examination and trial.
Daum v. Allstate Fire & Cas. Ins. Co., No. 13-64, 2014 WL 12600126, at *3 (D. Mont. Oct. 28,
2014) (finding that a two-and-a-half-year lag time between initial examination and trial, combined
with an incomplete initial examination, warranted a second extension).The parties focus only on
the third and fourth factors, so the Court does as well and finds that Defendant has made a strong
showing of good cause for a second IME.
Analyzing the third factor, Plaintiff claims that the requested examination is not necessary
because Dr. Gwynn already conducted neurocognitive testing and that Defendant’s basis—that is,
“their expert simply insists that the testing conducted was not the full battery of tests he would
have conducted” is insufficient [Doc. 89 p. 2]. Defendant rebuts Plaintiff’s argument that it is
“duplicative” by contending that “[t]he physician IME conducted on August 25, 2023 addressed
structural and physiological issues – it did not include neuropsychological measures. The 2022 and
2023 clinical assessments do not supply validity data, omit key cognitive domains, and are no
longer current” [Doc. 91 at 7]. Defendant also has submitted Dr. Gwynn’s IME of Plaintiff

[Doc. 91-1]. As asserted by Defendant, Dr. Gwynn notes in his report “I do not see records of a
neuropsychological evaluation that is cited a few times and other medical records” [Doc. 91-1
p. 3]. The IME appears to have consisted of “general observations of mentation, mood, and
behavior,” as well as a screening instrument [Doc. 91 p. 2 (citing Doc. 91-1 p. 4)]. As argued by
Defendant, these “cognitive comments . . . do not include the standardized, multi-domain
neuropsychological testing with embedded performance-validity and symptom-validity measures
that a forensic neuropsychologist would conduct” [Id.]. The Court therefore finds the third factor
weighs in favor of Defendant’s request.
Examining the fourth factor, the Court finds that a substantial time lag between the initial
examination and trial also supports a second examination. Vopelak, 42 F.R.D. at 389 (granting

second examination upon finding that “a long period of time intervening between the [first]
examination and trial” combined with change in physical condition of the plaintiff afforded
justification for a further examination). Defendant asserts that “the 2022 and 2023 assessments are
not contemporaneous with [Plaintiff’s] current condition” [Doc. 86 p. 6]. More than two years will
have passed by the trial date, currently set for July 28, 2026 [Doc. 95]. This too supports another
IME. See S.R., 2018 WL 11420453, at *3–4 (allowing a second examination where there was
indication the initial examination was not adequate or complete and where a 19-month period had
passed between the upcoming trial date and the initial examination of plaintiffs); Daum,
2014 WL 12600126, at *3 (finding that a two-and-a-half-year lag time between initial examination
and trial, combined with an incomplete initial examination, warranted a second extension);
Roberts, 2013 WL 1814923, at *4 (allowing second examination where extensive length of time
passed between treatment and trial and defendant’s expert did not have adequate opportunity to
investigate plaintiff’s injuries).

Plaintiff argues that “Defendant’s new experts can depose Plaintiff’s treating physician
regarding the asserted deficiencies in his report, obtain and review raw data from that physician,
and act as a rebuttal expert” [Doc. 89 p. 3]. Plaintiff suggests that “[i]f there are concerns that the
2022 report is stale, Plaintiff can follow up with his physician and obtain an updated report” [Id.].
Alternatively, Plaintiff proposes that “[i]f specific additional testing is deemed necessary it can be
obtained in another, more targeted manner than through a second, full-spectrum, extraordinarily
invasive examination by Defendant’s own expert” [Id.]. Plaintiff offers the following alternatives:
“either an expert of Plaintiff’s choice or a more limited encounter with an expert selected by
Defendant” [Id.]. The Court finds that Plaintiff has not supported the argument that Defendant’s
proposed testing is “extraordinarily invasive” and has not shown that it is not proportional to the

needs of the case. And Defendant submits that “[t]he testing will be limited in scope and will last
no longer than eight hours with time for breaks . . . [and] will consist of a clinical interview and a
standardized battery” [Doc. 86 p. 6].
Accordingly, because Defendant has made a strong showing of good cause and because the
requested IME is not disproportionate to the needs of the case, the Court “must specify the time,
place, manner, conditions, and scope of the examination, as well as the person or persons who will
perform it.” Fed. R. Civ. P. 35(a)(2)(B). Defendant cites a declaration from its proposed expert that
details the examination’s manner, conditions, scope and reporting obligations, and requests that
the Court include these specifications in its Order [Doc. 86 p. 8 (citing Doc. 85-1)]. Plaintiff
requests the Court to order, pursuant to Defendant’s suggestion, that “the IME [is conducted] at a
convenient location, to allow the interview portion to be recorded, and to require the expert to
record the testing portion to be conveyed directly to Plaintiff’s retained expert for review, with the
raw data” [Doc. 89 p. 3]. Plaintiff further asks “that the testing be limited to a single day with
defined breaks” and asserts that “the expert’s statement that he will allow ‘routine’ breaks is
insufficient” [/d. ].
The Court ORDERS the parties to (1) meet and confer, via in person, or by telephone or
video conference, about the appropriate time, place, manner, conditions, and scope of
the examination and (2) file a joint status report setting forth the parameters of the Rule 35
examination on or before December 8, 2025.” Following receipt of the joint status report, the
Court will issue an order “specify[ing] the time, place, manner, conditions, and scope of
the examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2)(B).
I. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s Motion to Compel Rule 35
Neuropsychological Examination of Marcus Sewell, Jr. [Doc. 85], and the Court orders Plaintiff
Marcus Sewell, Jr. to submit to an independent medical examination pursuant to Federal Rule of
Civil Procedure 35.
IT IS SO ORDERED.
ENTER:
Cpe Fowl
□□□
United States Magistrate Judge

At the time Defendant filed its motion, trial was set for May 19, 2026, and Defendant
proposed that Dr. Braughman conduct the examination on December 5, 2025, at 9:00 a.m. to 5:00
p.m. [Doc. 85 p. 5]. The trial date is now July 28, 2026 [Doc. 95].
10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11213761. Public record. Not legal advice.